Hamwaama AND Others v Attorney-General of Namibia and Others (CA 16/2009) [2009] NAHC 67 (05 June 2009);

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SUMMARY REPORTABLE


CASE NO.: CA 16/2009


HAMWAAMA AND OTHERS

v

ATTORNEY-GENERAL AND OTHERS


Heard on: 2009 April 27

Delivered on: 2009 June 5


HOFF, J et PARKER, J

____________________________________________________________________

Criminal procedure - Appeal – Application for leave to appeal in criminal proceedings – Irrespective of constitutional challenge in criminal proceedings the nature of proceedings is not converted thereby into civil.


Criminal procedure - Appeal – Application for leave to appeal – Court holding that applicants have failed to indicate reasonable possibility that Supreme Court may take different view and also to show there are reasonable prospects of success on appeal – Accordingly Court dismissing appeal.


Criminal procedure - Appeal – Application for leave to appeal against conviction and sentence already refused by trial Court – Trial Court having no jurisdiction to entertain a second application for the same relief.


Criminal procedure - Appeal – Application for leave to appeal to Supreme Court – Application for leave to appeal already refused by trial Court – Petition to Chief Justice also dismissed – Once Chief Justice has refused application there can be no further application for leave to appeal.






REPORTABLE

CASE NO.: CA 16/2009

IN THE HIGH COURT OF NAMIBIA


In the matter between:

TUHAFENI HELMUTH HAMWAAMA 1st Applicant

THOMAS HEITA 2nd Applicant

KAIN MCNAB 3rd Applicant

FREDIS KAVALE 4th Applicant

and

THE ATTORNEY-GENERAL OF NAMIBIA 1st Respondent

THE MINISTER OF JUSTICE 2nd Respondent

THE PROSECUTOR-GENERAL OF NAMIBIA 3rd Respondent

CORAM: HOFF, J et PARKER, J

Heard on: 2009 April 27

Delivered on: 2009 June 5

__________________________________________________________________

JUDGMENT:

PARKER, J.:

[1] In the present matter (CA 16/09) the applicants have sought leave to appeal against this Court’s decision (in Case No.: A 176/07) on an application (“the constitutional challenge”) in which the applicants had prayed for orders in the following terms (set out, hereunder, verbatim):


(1) Granting the applicants an order of enforcement or protecting the applicants’ fundamental rights and freedoms guaranteed by the Constitution Articles 10, 12, (1) (a), (c),(e) and 138 (c).


  1. Declaring the in-chambers consideration and refusal decision of the applicants’ petitions for leave to appeal to the Supreme Court of Namibia in terms of Section 316 (6), (7) and (9) (a) of the Criminal Procedure Act, Act 51 of 1977, to be null and void and setting aside the refusal decision of 19 July 2000 and 14 March 2005.


  1. Declaring the following parts of the Criminal Procedure Act, Act 51 of 1997, Section 316 (6), (7) and (9) (a) to be unconstitutional and in conflict with the constitution of Namibia and setting aside the subsections in question.


  1. Granting the applicants an order for a fair and pubic hearing and prosecuting their appeals against their trial proceedings, conviction and sentence to the finality in the Supreme Court of Namibia.


  1. That the Honourable Supreme Court of Namibia be directed that the applicants’ appeals be dealt with in a reasonable time as a matter or urgency.


[2] The applicants appear in person. The 2nd, 3rd and 4th applicants confirmed to the Court that the 1st applicant would argue their application for them and on their behalf. Ms Katjipuka-Sibolile represents the respondents. Counsel informed the Court that the respondents would not persist in their preliminary objection to condonation of the applicants’ late filing of their so-called “Notice of Appeal”. It follows that I proceed to consider the merits of the application.


[3] An official in the office of the Registrar completely misunderstood the nature of the application in Case No.: A 176/07, and so he or she treated the aforementioned matter as if it were an application in civil proceedings. Under such glaring misapprehension, the official opened a new case file and wrongly gave that matter a new Case Number, a Case Number reserved for application in civil proceedings, i.e. “Case No.: A 176/07”, instead of a Case Number with the notation “CA” which is for criminal appeal.


[4] This gross misapprehension of the law and the Rules of Court led to a litany of confusion. For instance, the heading of a letter addressed to “The Assistant Registrar” of the Supreme Court by an official, on behalf of the Registrar, reads “Re: Civil Appeal, A 176/07 to Supreme Court, T Hamwaama and 3 others. This letter, dated 11 September 2008, enclosed “3 copies and the summary judgment”.


[5] To start with, the judgment that this Court delivered on 31 July 2008 (“the 31 July 2008 judgment”) in the aforementioned Case No.: A 167/07 respecting the aforementioned constitutional challenge is not a “summary judgment” by any stretch of legal imagination. By a parity of reasoning and equally important, the appeal that the applicants now seek this Court’s leave to pursue in the Supreme Court against the abovementioned 31 July 2008 judgment of this Court is not – and cannot be – a civil appeal: it is an appeal in criminal proceedings; that is, a progression of the said criminal proceedings in which this Court convicted the applicants and thereafter on 16 August 1999 sentenced them to prison terms.


[6] What happened after this Court had sentenced the applicants, as aforesaid, has been set out briefly at p7 of the 31 July 2008 judgment thus:


Having had their leave to appeal against conviction and sentence refused by this Court, the 1st, 2nd and 3rd applicants petitioned the Chief Justice for leave to appeal. Their petition was considered by three judges of the Supreme Court “according to law” and refused on 19 July 2000. The 4th applicant’s petition suffered a similar fate on 14 March 2004. These are the main, relevant facts in the present matter, and they are not in dispute. Consequently, in my view the question this Court is called upon to determine is primarily a matter of constitutional law; and that is the manner in which we approach this case.


[7] I have sketched this background to bring home the significant point that all these proceedings are criminal proceedings and not civil proceedings. The fact that the applicants mounted a constitutional challenge in criminal proceedings did not by that reason convert the nature of the proceedings from criminal to civil. (See S v Strowitzki 1994 NR 265.) In this regard, it would seem Ms Katjipuka-Sibolile also misread the true nature of the application in Case No.: A 176/07.


[8] Thus, as far as we are concerned, the applicants now seek leave to appeal against a judgment of this Court, sc. the 31 July 2008 judgment, in criminal proceedings. That is the manner in which we approach the instant application for leave to appeal: it is leave to appeal in criminal proceedings.


[9] In S v Nowaseb 2007 (2) NR 640 at 640F-641A, I had this to say concerning application for leave to appeal:


It has been stated in a long line of cases that in an application of this kind, the applicant must satisfy the Court that he or she has a reasonable prospect of success on appeal (See, e.g., Rex v Nxumalo 1939 AD 580; Rex v Ngubane and Others 1945 AD 185; Rex v Ramanka 1948 (4) SA 928 (O); Rex v Baloi 1949 (1) SA 523 (A); Rex v Chinn Moodley 1949 (1) SA 703 (D); Rex v Vally Mahomed 1949 (1) SA 683 (D & CLD); Rex v Kuzwayo 1949 (3) SA 761 (A); R v Muller 1957 (4) SA 642 (A); The State v Naidoo 1962 (2) SA 625 (A); S v Cooper and Others 1977 (3) SA 475 (T); S v Sikosana 1980 (4) SA 559 (A).) The first ten sample of cases adumbrated above were decided before the coming into operation of the new Criminal Procedure Act, 1977 (Act 51 of 1977) (CPA), but the test remains unchanged. (Sikosana, supra, at 562D)


Thus, an application for leave to appeal should not be granted if it appears to the Judge that there is no reasonable prospect of success. And it has been said that in the exercise of his or her power, the trial Judge (or, as in the present case, the appellate Judge) must disabuse his or her mind of the fact that he or she has no reasonable doubt as to the guilt of the accused. The Judge must ask himself or herself whether, on the grounds of appeal raised by the applicant, there is a reasonable prospect of success on appeal; in other words, whether there is a reasonable prospect that the court of appeal may take a different view (Cooper and Others, supra, at 481E; Sikosana, supra, at 562H; Muller, supra, at 645E-F). But, it must be remembered, “the mere possibility that another Court might come to a different conclusion is not sufficient to justify the grant of leave to appeal.” (S v Ceaser 1977 (2) SA 348 (A) at 350E)


[10] We respectfully adopt the dicta by Diemont, JA, which, in our opinion, must apply mutatis mutandis to the present application for leave to appeal. In the 31 July 2008 judgment, this Court gave a fully reasoned judgment when it dismissed the applicants’ constitutional challenge. It will serve no useful purpose to rehearse the reasons for our decision thereanent in this judgment. I have given great thought objectively to the present application and, disabusing my mind – as far as is humanly possible – of the fact that we had no doubt that the applicants’ constitutional challenge had no merit, I have not one iota of doubt in my mind that there are no reasonable prospects at all that the Supreme Court may take a different view. It follows that in our judgment the applicants have failed to show that they have reasonable prospects of success on an appeal to the Supreme Court.


[11] That is not the end of the matter: in a disingenuous rearguard action, the applicants now say that they seek leave to appeal only in respect of prayer (1) (which is set out above). The gravamen of their argument in this regard is briefly that there were irregularities in the proceedings during their trial and therefore they did not receive a fair trial which it is their constitutional right to receive in terms of Article 12 of the Namibian Constitution. This argument, with the greatest deference, is absolutely devoid of a modicum of merit. Whether there were irregularities during the trial and so the guilt of the accused had not been proved beyond a reasonable doubt and, therefore, the Supreme Court might take a different view was what the Court hearing the application for leave to appeal in December 1999, as aforesaid, considered in order to have come to the conclusion that the applicants did not have reasonable prospects of success on appeal, and accordingly refused their application. It follows that we accept Ms Katjipuka-Sibolile’s submission on the point.


[12] Thus, in this regard, it cannot be emphasized enough that the applicants’ application for leave to appeal to the Supreme Court against conviction and sentence was refused by this Court as far back as December 1999, as I have said previously, and that led to the applicants petitioning the Chief Justice for leave to appeal to the Supreme Court. Their petitions were also refused by the Chief Justice (in respect of the 1st and 3rd applicants on 19 July 2000, in respect of the 4th applicant on 19 November 2004, and in respect of the 2nd applicant on 14 March 2005).


[13] It follows as a matter of course and inexorably that since the applicants’ application for leave to appeal to the Supreme Court against their conviction and sentence has already – as far back as December 1999 – come before this Court, qua trial court, this Court is functus officio in regard to the present second application for the same relief, even if the applicants have, with respect, unabashedly by a puerile chicanery attempted to disguise the true nature of the second application. (See S v Vontsteen 1972 (4) SA 1 (T) (Head note); S v Singh 1994 (2) SACR 653 (D).) In pith and substance, the present second application is indubitably also an application for leave to appeal against the applicants’ conviction and sentence. Furthermore, the decision of the Chief Justice to refuse the applicants’ petitions for leave to appeal to the Supreme Court is final (R v Maharaj 1958 (4) SA 246 (A); S v Gavanozis 1979 (1) SA 1020 (W)). Accordingly, I hold that the applicants have completely exhausted the leave-to-appeal process open to them by the Rules of Court, and they have failed. They cannot have a second bite at the cherry; the bus stops here in their case and for them.


[14] Additionally, and this is significant, the hollow trickery of the applicants amounts to a superlatively gross abuse of the process of the Court at which the Court must frown: such conduct should not and cannot be countenanced by the Court under any circumstances.


[15] For all the above findings, reasoning and conclusions, the application for leave to appeal is dismissed.



___________________________

Parker, J


I agree.


___________________________

Hoff, J

ON BEHALF OF THE APPLICANTS: In person


ON BEHALF OF THE RESPONDENTS: Ms U. Katjipuka-Sibolile

Instructed by: The Government-Attorney





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